El Diablo Closure: What Does It Mean?
CCDC members have been asking what impact this closure has on our lawsuit. Our lawsuit is moot. What does that mean? It means the case is over completely.
The only available remedy under Title III of the ADA is injunctive relief. A plaintiff cannot recover money damages when suing a private public accommodation. This was a compromise when the ADA was passed. A big one. If plaintiffs had damages claims, we could still request those be paid, and that part of the case would continue.
Injunctive relief means a court order requiring defendants to make the restaurant accessible. Under the ADA, the "prevailing party" is entitled to recover reasonable fees and costs. Because there is no more El Diablo, there is nothing the Court can order it to do. Even though plaintiffs obtained a court order saying El Diablo's owners and operators were out of compliance with the ADA. The Court said:
"Defendants made a flat, accessible space into a space with inaccessible areas. There is not a ramp or wheelchair lift. All alterations to El Diablo took place in 2009 or 2010 before September 15, therefore, the restaurant is required to comply with
the 1991 Standards. 28 C.F.R. § 36.406(a)(1). . . . In short, the alterations made to the El Diablo Restaurant space created a new barrier to wheelchairs."
Then the Court issued an order granting plaintiffs' motion requesting an injunction. There the Court said:
"The injury to the plaintiffs and those persons represented by the Colorado Cross-Disability Coalition is that when they patronize this restaurant, they must suffer the indignity of discriminatory treatment by their exclusion from 840 square feet of the dining area solely because they use wheelchairs. The elimination of that discriminatory treatment goes to the very purpose of the ADA and it can only be remedied by requiring such modification to those areas as to make them accessible to wheelchairs."
These decisions are great, and they will be useful in other cases like this.
Nevertheless, the Court later issued an order deferring the injunction, saying, "The issues with the City are of such significant importance to any court approved plan to remediate the barriers to wheelchair access that no further orders can be entered until the issues have been resolved."
We appealed that decision to the Tenth Circuit Court of Appeals. The Tenth Circuit sided with the defendants and issued an order that abated (postponed) the case until the owner business resolved its bankruptcy action.
Because we never obtained an injunction, and because there is nothing the Court can order them to do regarding access, plaintiffs are not the prevailing party. We cannot recover any of our attorneys' fees and costs.
Because El Diablo's owner fought so hard against providing accessibility, CCDC's Legal Program incurred over $300,000 in attorneys' fees. If El Diablo had stayed open (and presumably emerged from Chapter 11 bankruptcy), the court could have issued the injunction requiring access. And, after resolving any appellate issues, plaintiffs could have requested the court award all reasonable fees and costs.
The law firm of Fox & Robertson, through Amy Robertson's wonderful blog, Thoughts Snax, explains what you can do to help us recover from all of the time the Legal Program has spent fighting with El Diablo. Check out El Diablo closed. Donate to CCDC. QED.
The Legal Program wishes to thank the plaintiffs Tim Fox, Julie Reiskin and Jaime Lewis for bringing this important case. If a business alters a building to make a new place of public accommodation, everything it alters must be accessible.
Thank you all for your ongoing support.
Kevin W. Williams
Legal Program Director
Colorado Cross-Disability Coalition